Citation Nr: 1025022
Decision Date: 07/06/10 Archive Date: 07/19/10
DOCKET NO. 07-32 231 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to a disability rating in excess of 20 percent
for diabetes mellitus.
2. Entitlement to special monthly compensation under the
provisions of 38 U.S.C.A. § 1114(r)(2) (West 2002) for a veteran
in need of regular aid and attendance at a higher level of care.
3. Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for post-traumatic
stress disorder (PTSD).
ATTORNEY FOR THE BOARD
C. R. Olson, Counsel
INTRODUCTION
The Veteran had active service from September 1967 to December
1968.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2007 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi.
The December 2006 VA examination for PTSD resulted in a
diagnosis of mood disorder due to general medical
condition (Traumatic Brain Injury). Recent amendments to
the rating code provide specific criteria for rating
Traumatic Brain Injury. It does not appear that this
aspect of the Veteran's disability has been adjudicated
under the new criteria. Since this has not been
adjudicated by the Agency of Original Jurisdiction (AOJ),
the Board does not have jurisdiction over the issue and it
is referred to the AOJ for appropriate action.
The issue of whether new and material evidence has been received
to reopen a claim of entitlement to service connection for PTSD
is addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The service-connected type II diabetes mellitus is manifested
by the need for restricted diet and insulin injections, without
any need for regulation of the Veteran's activities due to the
diabetes.
2. There have been no episodes of ketoacidosis or hypoglycemic
reactions requiring hospitalizations. The Veteran continues to
have follow-up care every 3 months and does not need to visit his
diabetic care provider more often. There is no evidence of other
complications that warrant a higher rating.
3. An October 1990 rating decision determined that the Veteran
was entitled to special monthly compensation under 38 U.S.C.
§ 1114(o) on account of paraplegia with loss of use of both legs
and loss of anal and bladder sphincter control; and entitled to
an aid and attendance allowance under 38 U.S.C. § 1114(r)(1).
4. The Veteran needs personal health-care services on a daily
basis in his home by a person who provides such services under
the regular supervision of a licensed health-care professional
and in the absence of the provision of such higher level of care
he would require hospitalization, nursing home care, or other
residential institutional care.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for
diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and
Codes 7913 (2009).
2. The criteria for special monthly compensation under the
provisions of 38 U.S.C.A. § 1114(r)(2) (West 2002) for a veteran
in need of regular aid and attendance at a higher level of care
have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. 3.350(h), 3.352 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
A letter from the RO, dated in August 2006, briefly addressed the
claim for an increased rate of special monthly compensation. As
the Board is granting in full the benefits sought on appeal of
that issue, any error that might have been committed with respect
to either the duty to notify or the duty to assist was harmless
and will not be further discussed.
Duty to Notify
In a letter dated in October 2006 the RO provided the Veteran
with an explanation of the type of evidence necessary to
substantiate his claim for an increased rating for diabetes
mellitus, as well as an explanation of what evidence was to be
provided by him and what evidence the VA would attempt to obtain
on his behalf. The October 2006 letter also provided notice
regarding potential ratings and effective dates. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006). This was sent before the
initial rating decision in January 2007. In October 2008, the
Veteran was sent a copy of the rating criteria in accordance with
the holding of the United States Court of Appeals for Veterans
Claims (Court) in Vasquez-Flores v. Peake, 22 Vet. App. 37, 43
(2008). Thereafter, the appellant was afforded a meaningful
opportunity to participate effectively in the processing of his
claim and given ample time to respond. This cured any notice
defects before the agency of original jurisdiction (AOJ)
readjudicated the case by way of a supplemental statement of the
case issued in March 2009. See Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370,
376 (2006). As to the rating of the diabetes mellitus, VA has
complied with the notice requirements of VCAA and has no
outstanding duty to inform the appellant that any additional
information or evidence is needed. Therefore, the Board may
decide the appeal on that issue without a remand for further
notification.
Duty to Assist
The Board also finds that all relevant facts have been properly
developed, and that all evidence necessary for equitable
resolution of the claim for a higher rating for diabetes mellitus
has been obtained. The Veteran's service medical records have
been obtained. His available post-service treatment records have
also been obtained. The Veteran has had VA examinations and
medical opinions have been obtained. He was scheduled for a
Board hearing but withdrew his request for a hearing and asked
that the appeal be considered on the record. Significantly, he
has not identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence, no
further notice or assistance to the appellant is required to
fulfill VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
A Rating in Excess of 20 Percent for Diabetes Mellitus
Disability ratings are determined by the application of the
Schedule for Rating Disabilities, which assigns ratings based on
the average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R.
Part 4. Where there is a question as to which of two ratings
shall be applied, the higher rating will be assigned if the
disability picture more nearly approximates the criteria required
for that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the Veteran's condition. Schafrath v. Derwinski, 1
Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2
(2009). The Board has considered all the evidence of record.
Specifically, we have gone back at least a year before the date
the claim was received. See 38 C.F.R. §§ 3.157, 3.400(o) (2009).
However, the most probative evidence of the degree of impairment
consists of records generated in proximity to and since the claim
on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994).
A 10 percent rating will be assigned where diabetes mellitus is
manageable by restricted diet only. A 20 percent rating requires
insulin and restricted diet; or an oral hypoglycemic agent and
restricted diet. A 40 percent rating will be assigned for a
disability requiring insulin, restricted diet, and regulation of
activities. A 60 percent rating will be assigned for diabetes
mellitus requiring insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or twice
a month visits to a diabetic care provider, plus complications
that would not be compensable if separately evaluated. A 100
percent rating requires more than one daily injection of insulin,
restricted diet, and regulation of activities (avoidance of
strenuous occupational and recreational activities) with episodes
of ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a diabetic
care provider, plus either progressive loss of weight and
strength or complications that would be compensable if separately
evaluated. Note (1) specifies that the compensable complications
of diabetes will be evaluated separately unless they are part of
the criteria used to support a 100 percent evaluation.
Noncompensable complications are considered part of the diabetic
process under diagnostic code 7913. 38 C.F.R. § 4.119, Code 7913
(2009).
The Veteran had a VA examination, specifically for diabetes
mellitus, in October 2006. It was reported that he had had no
ketoacidosis. He had a hypoglycemic reaction about 3 months
earlier. His wife stated that at least one or two times a week,
he would have hypoglycemic episodes when he became weak, shaky,
and nervous. He would drink orange juice with sugar, eat a
glucose tablet or candy for relief. He had had no
hospitalizations for ketoacidosis or hypoglycemic reactions. He
followed a diabetic diet. His weight had been stable at 156
pounds. It was specifically noted that he did not have to limit
his activities on the basis of his diabetes. He saw his diabetic
care provider every 3 months. There were no symptoms of anal
pruritus. There was weakness, but it was related to his war
injuries. The effects of these injuries were noted. He wore
glasses, but there was no history of diabetic retinopathy. The
Veteran was examined with detailed findings reported. The
diagnoses were type II diabetes and paraplegia.
The examiner summarized that the Veteran had type II diabetes
with fair control. There had been no significant hypoglycemic
reactions, history of ketoacidosis or any hospitalizations for
diabetes. The current treatment include diet, oral medications,
and insulin injections. Weight was basically stable. It was
noted that the Veteran had significant activity restriction
related to his war injury, which resulted in paraplegia, as well
as sphincter and bladder control, but that was not related to his
diabetes. There were no abnormal cardiovascular findings.
Neurological findings were related to his war injuries and not to
the diabetes. There was no evidence of retinopathy or
significant skin problems. His feet were in good shape. The
examiner expressed the opinion that there was no functional
impairment related specifically to his diabetes, as far as usual
work and no limitation on his activities of daily living.
Subsequent VA clinical notes show the Veteran's diabetes remained
within the parameters of a 20 percent rating. There was no
indication that the diabetes in any way restricted the Veteran's
activities. In fact, in February 2008, August 2008, and March
2009, the Veteran was encouraged to exercise to such extent as he
could with his spinal cord injury. There was a small loss of
weight to 152.7 pounds in March 2009, but none of the medical
personnel indicated this to be problematic. Overall, the
clinical notes do not show a need for regulation of activities
(avoidance of strenuous occupational and recreational
activities), episodes of ketoacidosis or hypoglycemic reactions
requiring hospitalizations, a need for visits to a diabetic care
provider twice a month or more often, progressive loss of weight
and strength, or other complications.
Conclusion
While the Veteran may feel that his service-connected diabetes
warrants a higher evaluation, the objective findings of the
trained medical professionals are substantially more probative in
determining the extent of the disability and whether it meets the
criteria for a higher evaluation. In this case, the evidence
shows that the diabetes does not require the Veteran to regulate
his activities; and, therefore, does not meet the criteria for a
higher rating. The Board has considered the other ratings.
Here, again, the VA examination findings and clinical records
show that the disability has not, at any time, approximated any
criteria for a higher rating. There is no need to regulate the
Veteran's activities. There have been no episodes of
ketoacidosis or hypoglycemic reactions requiring
hospitalizations. The Veteran continues to have follow-up care
every 3 months and does not need to visit his diabetic care
provider more often. There is no evidence of other complications
that warrant a higher rating. On this issue, the medical
examination reports and clinical notes provide a preponderance of
evidence. As the preponderance of the evidence is against the
claim, the benefit of the doubt doctrine is not applicable and
the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d
1361 (Fed. Cir. 2001).
The Board has considered the issues raised by the United States
Court of Appeals for Veterans Claims (Court) in Hart v.
Mansfield, 21 Vet. App. 505 (2007) and whether staged ratings
should be assigned. We conclude that the diabetes mellitus has
not significantly changed and uniform rating is appropriate in
this case. At no time during the rating period has the
disability exceeded the criteria for a 20 percent rating.
Other Criteria and Extraschedular Rating
The potential applications of various provisions of Title 38 of
the Code of Federal Regulations (2009) have been considered
whether or not they were raised by the Veteran as required by the
holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589,
593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1)
(2009). The Board finds that the evidence of record does not
present such "an exceptional or unusual disability picture as to
render impractical the application of the regular rating schedule
standards." 38 C.F.R. § 3.321(b)(1) (2009). While the Veteran
may disagree, the preponderance of medical evidence shows that
the manifestations of his type II diabetes mellitus are
adequately compensated by the rating schedule. The evidence does
not present such an exceptional disability picture that the
available schedular evaluations for the service-connected
disability are inadequate. See Thun v. Peake, 22 Vet. App. 111,
115 (2008). The Veteran has a service-connected spinal cord
injury that renders him unemployable. There has been no showing
that his diabetes has resulted in marked interference with
employment. On the October 2006 examination, the examiner
expressed the opinion that there was no functional impairment
related specifically to his diabetes, as far as usual work was
concerned. Further, there is no evidence that the diabetes
required any hospitalization. In the absence of such factors,
the Board finds that the criteria for submission for assignment
of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)
are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The record shows
that the Veteran is totally disabled by his combat injuries. The
diabetes does not prevent him from engaging in substantially
gainful employment. The record here does not raise a claim for
total disability based on individual unemployability (TDIU). See
Rice v. Shinseki, 22 Vet. App. 447 (2009).
Special Monthly Compensation Under 38 U.S.C. § 1114(r)(2)
The Veteran contends that he is entitled to special monthly
compensation at the rate provided by 38 U.S.C. § 1114(r)(2)
because his disabilities require the aid and attendance of
another (his wife) under the regular supervision of a licensed
health care professional. His doctor's agree.
The Veteran is currently in receipt of special monthly
compensation under the provisions 38 U.S.C. § 1114(r)(1) because
his disabilities require the regular aid and attendance of
another person. A higher level of compensation is payable to a
veteran who, in addition to the need for regular aid and
attendance is in need of a higher level of care. The need for a
higher level of care shall be considered to be need for personal
health care services provided on a daily basis in the Veteran's
home by a person who is licensed to provide such services or who
provides such services under the regular supervision of a
licensed health care professional. 38 U.S.C.A. § 1114(r)(2)
(West 2002); 38 C.F.R. § 3.350(h) (2009).
For comparison, the Board notes that the criteria for the current
compensation based on the need for regular aid and attendance
consider the inability of the claimant to dress or undress
himself or to keep himself ordinarily clean and presentable;
frequent need of adjustment of any special prosthetic or
orthopedic appliances which by reason of the particular
disability cannot be done without aid (this will not include the
adjustment of appliances which normal persons would be unable to
adjust without aid, such as supports, belts, lacing at the back,
etc.); inability of the claimant to feed himself through loss of
coordination of upper extremities or through extreme weakness;
inability to attend to the wants of nature; or incapacity,
physical or mental, which requires care or assistance on a
regular basis to protect the claimant from hazards or dangers
incident to his daily environment. "Bedridden"' will be a
proper basis for the determination. For the purpose of this
paragraph "bedridden" will be that condition which, through its
essential character, actually requires that the claimant remain
in bed. The fact that claimant has voluntarily taken to bed or
that a physician has prescribed rest in bed for the greater or
lesser part of the day to promote convalescence or cure will not
suffice. It is not required that all of the disabling conditions
enumerated in this paragraph be found to exist before a favorable
rating may be made. The particular personal functions which the
veteran is unable to perform should be considered in connection
with his condition as a whole. It is only necessary that the
evidence establish that the veteran is so helpless as to need
regular aid and attendance, not that there be a constant need.
Determinations that the veteran is so helpless, as to be in need
of regular aid and attendance will not be based solely upon an
opinion that the claimant's condition is such as would require
him to be in bed. They must be based on the actual requirement
of personal assistance from others. 38 C.F.R. § 3.352(a) (2009).
The basic criteria for the higher level aid and attendance
allowance are as follows: (1) A veteran is entitled
to the higher level aid and attendance allowance authorized by
Section 3.350(h) in lieu of the regular aid and attendance
allowance when all of the following conditions are met:
(i) The veteran is entitled to the compensation
authorized under 38 U.S.C. 1114(o), or the maximum rate of
compensation authorized under 38 U.S.C. 1114(p). [An October
1990 rating decision determined that the Veteran was entitled to
special monthly compensation under Subsection (o) on account of
paraplegia with loss of use of both legs and loss of anal and
bladder sphincter control.]
(ii) The veteran meets the requirements for
entitlement to the regular aid and attendance allowance in
paragraph (a) of this section. [The October 1990 rating decision
also determined the Veteran was entitled to an aid and attendance
allowance under Subsection (r)(1).
(iii) The veteran needs a "higher level of care" (as
defined in paragraph (b)(2) of this section) than is required to
establish entitlement to the regular aid and attendance
allowance, and in the absence of the provision of such higher
level of care the veteran would require hospitalization, nursing
home care, or other residential institutional care.
(2) Need for a higher level of care shall be considered to
be need for personal health-care services provided on a daily
basis in the veteran's home by a person who is licensed to
provide such services or who provides such services under the
regular supervision of a licensed health-care professional.
Personal health-care services include (but are not limited to)
such services as physical therapy, administration of injections,
placement of indwelling catheters, and the changing of sterile
dressings, or like functions which require professional health-
care training or the regular supervision of a trained health-care
professional to perform. A licensed health-care professional
includes (but is not limited to) a doctor of medicine or
osteopathy, a registered nurse, a licensed practical nurse, or a
physical therapist licensed to practice by a State or political
subdivision thereof. (3) The term "under the regular
supervision of a licensed health-care professional," as used in
paragraph (b)(2) of this section, means that an unlicensed person
performing personal health-care services is following a regimen
of personal health-care services prescribed by a health-care
professional, and that the health-care professional consults with
the unlicensed person providing the health-care services at least
once each month to monitor the prescribed regimen. The
consultation need not be in person; a telephone call will
suffice. (4) A person performing personal health-care services
who is a relative or other member of the veteran's household is
not exempted from the requirement that he or she be a licensed
health-care professional or be providing such care under the
regular supervision of a licensed health-care professional.
(5) The provisions of paragraph (b) of this section are to be
strictly construed. The higher level aid-and-attendance
allowance is to be granted only when the veteran's need is
clearly established and the amount of services required by the
veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b)
(2009).
Attendance by relative. The performance of the necessary aid and
attendance service by a relative of the beneficiary or other
member of his or her household will not prevent the granting of
the additional allowance. 38 C.F.R. § 3.352(c) (2009).
In January 2007, the RO denied the claim based on the report of a
December 2006 PTSD examination, rather than an examination of the
Veteran's physical condition. The RO noted that the Veteran told
the PTSD examiner that he spent his time watching sports on
television and reading. It was reported that in warmer months he
liked to work outside mowing the lawn and doing mechanic repair
work. In his substantive appeal, the Veteran explained that he
told the PTSD examiner he would like to work outside and do
mechanic work, if he could. This explanation is entirely
credible. Given the physical findings in physical examinations
and in the VA clinical notes, it is clear that the Veteran has
lost the use of his lower extremities and could not even operate
the pedals on a riding mower, much less use a push mower. Thus,
the record confirms that the PTSD examiner must have misconstrued
the Veteran's comments and the PTSD examiner's report that the
Veteran worked outside mowing the lawn and doing mechanic repair
work is not credible or persuasive. It is outweighed by the rest
of the evidence.
More importantly, the law has a very specific requirement that
the existence of the need for such care shall be determined by a
VA physician. 38 U.S.C.A. § 1114(r) (West 2002). In this case,
the PTSD examiner did not actually make any observations of her
own as to the Veteran's physical disabilities or how they would
impact his life. She did not offer an opinion as to whether the
Veteran was in need of aid and attendance at a higher level.
Thus, the PTSD examination is not legally sufficient evidence for
this claim.
In a statement dated in November 2005, the Veteran's treating VA
physician reported that the Veteran was a paraplegic as the
result of a spinal cord injury. It was reported that the Veteran
required the following specialty care and without a higher level
of care, he would require hospitalization, nursing home care, or
other residential institutional care: administering injections;
taking scheduled medication; changing sterile dressings; cleaning
urinary devices; bathing on a daily basis; positioning him
correctly in a wheelchair; transferring in and out of bed,
wheelchair, or car; daily bowel care; daily bladder irrigation;
daily monitoring of temperature and blood pressure; daily
monitoring for bladder distension; preventing reflux; and
repositioning multiple times daily in a wheel chair and bed to
prevent decubitus ulcers.
Further, it was reported that the Veteran's wife was trained by
members of the VA spinal cord staff and would be supervised by
the treating physician or staff. She consulted with the staff at
least on a monthly basis, in person or by phone. The physician
verified that the Veteran's wife provided skilled care to him on
a daily basis, in his home and without such care, the Veteran
would have to be hospitalized or placed in a nursing home or
other institution.
The Veteran had a VA aid and attendance examination in August
2006. The Veteran reported that he was unable to perform
activities of daily living. It was noted that he was paralyzed
and did not have a gait. He was described as stooped, wheelchair
bound, and well groomed. In his upper extremities, he had a
moderate grip and fine motor movements. He required assistance
with food set-up and buttoning clothing. He was incontinent of
bowel and bladder. His lower extremities were paralyzed with
atrophy and contractions. As to his spine, he had chronic neck
and lower back pain. He was unable to move his trunk. He
travelled only to medical appointments and was unable to leave
his home without an attendant. He was not able to walk without
the assistance of another person. He used a wheel chair and
scooter. The examiner indicated that the Veteran was not able to
dress and undress himself unassisted, walk and get around
unassisted, or wash and keep himself ordinarily clean and
presentable. He had lost bladder and anal sphincter control. He
was not able to protect himself from the hazards of his daily
environment. The diagnoses included paraplegia and traumatic
brain injury. The examiner certified that the Veteran required
the daily personal health care services of a skilled provider,
without which the Veteran would require hospital, nursing home,
or other institutional care.
The file contains extensive VA clinical records. The most recent
records for March 2009 confirm that the Veteran's care at home is
being coordinated and supervised by a licensed health care
professional.
Conclusion
The law specifically requires that the determination as to
whether the Veteran is in need of a higher level of care must be
made by a VA physician. 38 U.S.C.A. § 1114(r). In this case,
there is no such determination against the claim. Rather, there
are reports from VA physicians in November 2005 and August 2006
to the effect that the Veteran needs a higher level of care
supervised by medical professionals. Indeed, the VA clinical
notes show that a higher level of care is being provided and
supervised by the VA medical staff. Thus, the clear weight of
the evidence supports the claim.
ORDER
A disability rating in excess of 20 percent for diabetes mellitus
is denied.
Special monthly compensation under the rate provided by
38 U.S.C.A. § 1114(r)(2) for a Veteran in need of regular aid and
attendance at a higher level of care is granted, subject to the
law and regulations governing the payment of monetary awards.
REMAND
In August 2006, the RO wrote to the Veteran and told him that he
was previously denied service connection for PTSD and notified on
October 4, 1990. The Board's search of the file did not disclose
any such notice. We did find a rating decision of that date,
with the notice letter sent in January 1991. PTSD was not at
issue and was not discussed. The summary at the end of the
decision listed PTSD as not service-connected. This was a
continuation from the November 1987 rating decision that denied
service connection for PTSD because it was not diagnosed on the
VA examination.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that,
in the context of a claim to reopen, VA is required to "look at
the bases for the denial in the prior decision and to respond
with a notice letter that describes what evidence would be
necessary to substantiate th[e] element or elements required to
establish service connection that were found insufficient in the
previous denial." Kent, 20 Vet. App. at 10. The August 2006
notice letter does not meet that test. While it discusses new
and material evidence generally, it does not tell the Veteran
what was missing previously and what he actually needs to submit
to reopen the claim.
Accordingly, the issue of whether new and material evidence has
been received to reopen a claim of entitlement to service
connection for PTSD is REMANDED for the following action:
1. The AOJ should review the file and
identify the last rating decision that
denied service connection for PTSD. Then,
the AOJ should write to the Veteran and
tell him the bases for the denial in the
prior decision and describe what evidence
would be necessary to substantiate the
element or elements required to establish
service connection that were found to be
insufficient in the previous denial.
2. Thereafter, the AOJ should readjudicate
the PTSD claim in light of any evidence added
to the record. If any benefit sought on
appeal remains denied, the appellant should
be provided a supplemental statement of the
case (SSOC). An appropriate period of time
should be allowed for response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate outcome
of this case. The appellant need take no action unless otherwise
notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs